India Uncut

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Monday, December 06, 2004

Unequal before the law

Yesterday, on “We the People”, the show on NDTV 24x7, Ram Jethmalani said something that threw me. The topic being discussed was the arrest of the Shankaracharya on murder charges, and Jethamalani, his lawyer, when asked to comment on whether he should receive special treatment, said that he should. He reasoned:

“Unequal people cannot be treated equally.”

Now, Jethmalani is one of the biggest names in Indian law, and I gasped when he said this. One of the foundations of a good legal system, no matter how cliched it may be, is that everyone is equal before the law. To argue that a man’s social status should be a factor in how the state treats him is deplorable. Many of the people in that show, so patiently steered by the excellent Barkha Dutt, argued that if politicians could be kept in guesthouses while being imprisoned, so could the Shankaracharya. As one person in the crowd pointed out, of course, you can’t cite one wrong in defending another.

The fact that the subject of special treatment was raised at all is an indicator of how rotten our prison system is. Anybody with any “pull” will naturally want special treatment, when conditions in jails, where undertrials can languish for a decade or two, are brutal and dehumanising. (I speak from reading reports on the subject, not from personal experience, thankfully.) Given the way “ordinary” prisoners are treated, our instinctive reaction, when we hear of a luminary being arrested, is that he should not be put through such an ordeal.

If only the Indian justice system had been conceived and could be administered with the “original position” in mind. The “original position” was a formulation of philosopher John Rawls, whose seminal book A Theory of Justice is one of the landmark works of modern philosophy. His theory was based on the social contract theory, but instead of starting at the “state of nature”, as Rousseau and Hobbes would have it, the hypothetical framers of Rawls's social contract start at the original position.

Wikipedia describes it thus: “In the state of nature, it might be argued that certain persons (the strong and talented) would have an advantage over others (the weak and disabled) by virtue of the fact that the stronger and more talented would fare better in the state of nature. In the original position, representatives of citizens are placed behind a veil of ignorance, depriving the representatives of information about the morally irrelevant characteristics of the citizens they represent. Thus, the representative parties would be unaware of the talents and abilities, ethnicity and gender, religion or belief system of the citizens they represent.”

Jethmalani, I can say with certainty, would be aware of Rawls’s work, and at dinner parties and the like would profess his agreement with Rawls’s intentions. But when a client pays him enough money, he would no doubt change his mind. Is that what good lawyers do these days?

Update - Read this excellent profile of Rawls by Pratap Bhanu Mehta. (Link courtesy Chandrahas.)

Update 2 (July 25, 2005): I'd mistakenly written "Adi Shankaracharya" in this post instead of "Shankaracharya". A reader pointed this out now, thus the late change. The mistake is regretted.
amit varma, 10:35 AM| write to me | permalink | homepage

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